Tuesday, September 11, 2001

LOGGING IN WITH . . . Rep. Rick Boucher Congress Should Amend Copyright Law to Protect Users' Rights, Legislator Says By ANDREA L. FOSTER Washington Rep. Rick Boucher, a Virginia Democrat, has been an outspoken critic of the Digital Millennium Copyright Act since it was first debated in Congress in 1998. His view, that the law undermines fair-use rights and free speech, has made him a friend of library groups and many scholars of intellectual-property law. He says problems with the law were highlighted twice in recent months, when Edward Felten, a Princeton University professor and cryptographer, was threatened by the recording industry for preparing a speech on flaws in a technology that limits access to digital material, and when Dmitri Sklyarov, a Russian graduate student and software developer, was arrested at a computing conference in Las Vegas for distributing software that could circumvent copyright protections on Adobe software. Now in his 10th term, Mr. Boucher represents southwestern Virginia west of Roanoke. He is co-founder and co-chairman of the Congressional Internet Caucus. He serves on the House Judiciary and Commerce Committees, and says he spends 70 percent of his time in Congress on issues related to information technology. Q. Are you planning to introduce a bill to amend the Digital Millennium Copyright Act, and when? A. I cannot give you a definite date for the introduction of the measure. I am at the present time consulting with a large number of interested parties, internally within the Congress and externally as well, to assemble an inventory of concerns with respect to the operation of the DMCA. ... At the latest, we'll have it by the start of the next session, which will be in January of next year. Q. What have you learned so far from these conversations? A. I've learned that there is a large level of concern ... about the current functioning of the DMCA. When we were considering the DMCA in 1998, I offered a series of amendments that were designed to ensure a reasonable balance between the effort to protect copyright owners and the effort to ensure that rights of users of intellectual property would be protected. Unfortunately, the amendments that I offered were not adopted, and the DMCA was essentially enacted in the form in which it was introduced. The amendments that I offered in 1998 would have assigned any unlawful conduct under the DMCA to either the infringement of the copyright or to conduct literally evidencing intent to infringe copyright. The DMCA, in the form in which it passed, is divorced from any notion of copyright infringement. It simply punishes the act of circumventing a technological-protection measure that guards access to the copyrighted work without regard to whether the infringement occurs. Q. Is that possible to enforce, though? How can you tell if someone was circumventing to infringe? A. I think courts all the time are called on to evaluate a set of circumstances to reach a decision about why certain conduct occurs. So it would not be unusual at all for a court to be called upon to make that decision. And I think it is essential at the end of this process that the DMCA only punish conduct that is related to copyright infringement. Q. You seem to be the lone voice in Congress opposing the Digital Millennium Copyright Act. Why is that? And what do you think you need to do to make your colleagues come around to your viewpoint? A. In Congress there are probably no more than 15 or 20 members who have any sustained activity, legislatively, with regard to intellectual property. I have had sustained activity in this field for almost two decades -- for 19 years to be exact. With regard to the DMCA, most members of Congress were very sensitive to the announced concerns of the content community, of the creative community, when it said that in the digital-networked era it faces special challenges. ... Members of Congress were very interested in responding to these things, and were not particularly interested in listening to hypotheticals from me about how a law, which I felt was not particularly carefully written, could go astray. But now, three years later, it is apparent the law has gone astray. Mr. Felten's circumstance is clear evidence of the law going astray, [as is] the arrest of Mr. Sklyarov. ... And the public is becoming very much interested in this issue. I have talked to The Wall Street Journal, The New York Times, Business Week, and the Los Angeles Times, to name a few of the elements of the popular press that have written about the subject just in the course of the last couple of months. And when the popular press begins to report on the problems of the DMCA, it will not be very long until more members of Congress become interested. I will make a prediction to you today. ... We will amend the DMCA to verify user rights, to buttress fair-use rights, to give greater validity to First Amendment rights. ... It may not happen in this Congress, but it's going to happen. At the core of those changes should be the notion that the only acts that will be punished are acts that are in furtherance of the infringement of a copyright. Acts that are designed to further fair-use rights should not be punished. Conduct that is generally considered to be an exercise of free speech should not be punished. Q. Groups that represent college professors or college administrators have been mostly silent on this issue. Do you think they need to become more active? A. I think they do need to become active at the time when we put legislation forward. And I anticipate that the Association of American Universities will support this change. ... I think any time a university professor is threatened with prosecution because he's speaking about his research, that universities generally would be concerned. Q. Jessica Litman, in her book Digital Copyright, criticizes Congress. She says that when the Digital Millennium Copyright Act was drafted, copyright owners and copyright distributors were at the table negotiating, but the public's viewpoint was ignored. She also suggests that political contributions from big media companies and other industries have influenced members of Congress. Is she exaggerating things? A. Well, I haven't read the book, so I won't critique what she said. But let me give you my version of events. In 1998, when the DMCA was presented, there really were not active organizations participating in the Congressional debate who were representing users of intellectual property. The librarians participated, to some extent; the AAU made its view known in a kind of a -- in a less-than-public participatory manner. In other words, it sent a letter saying, We have these views. The organization which has now become the DiMA did not exist at the time this bill was introduced. That's the Digital [Media] Association, which represents broadcasters and others who are Internet-based businesses. I will confess that it was a lonely effort to draft and introduce amendments that would have created a better balance than the law contains. ... The people who tend to specialize in this are people whose orientation, historically, has been just to protect copyright interests. I discount completely this notion that campaign contributions make a difference. It really doesn't. Campaign contributions have nothing to do with the passage of the DMCA. The fact that the creative community was organized, was present, and was forcefully making its case at a time when the user community was not organized, and was not present, and was not forcefully mounting a defense had everything to do with it. So, the key to enact change is to have an organized effort to do this, and to impress upon members of Congress the problems of the law and why the remedy that we're going to put forth is appropriate. And I'm going to need the help of universities to do this. I would be so bold as to say that we cannot succeed if we don't have the support of universities. Q. The Copyright Office hasn't been on your side on the issue of the Digital Millennium Copyright Act. A. The Copyright Office, historically, has seen its mission as defending copyrights. ... I am hoping that the Copyright Office over time will develop a greater mentality in support of user rights. And I think the time has come for the Copyright Office to take a long hard look at its mission and develop what I think would be a more balanced approach where it protects user rights as vigilantly as it protects copyright-holder rights. Easy-to-print version E-mail this article

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